Chen (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Real Estate Representative. The applicant's visa application had been refused by the Department, and the Administrative Appeals Tribunal (AAT) was reviewing this decision. The core dispute revolved around whether the nomination for the position had been approved in accordance with the relevant legislative criteria.

The Tribunal was required to determine whether the applicants met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several conditions for the nomination, including that the position must be nominated in a valid application, the applicant must be identified in relation to the position, the employer must be the nominator, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration or such information must be disregarded, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that it had previously set aside the Department's decision and substituted its own decision approving the appointment for the position of Real Estate Representative. Based on the evidence before it, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration, thus satisfying subclause 187.233(1). Furthermore, the Tribunal found that the employer was the nominator and that the visa applicant met the requirements of subclause 187.233(3) in light of its prior approval of the appointment.

Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233. The Tribunal therefore remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant met the criteria specified in clause 187.233.